Land and Environment Court of New South Wales CITATION : King v Ku-ring-gai Council [2005] NSWLEC 399 APPLICATION Julie King PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11567 and 11568 of 2004 CORAM: Nott C Development Application :- subdivision of land - overshadowing - removal of trees - traffic - hours of construction and parking - landscaping bond rejected - appeals upheld KEY ISSUES: Environmental Planning and Assessment Act 1979, s 97 LEGISLATION CITED: State Environmental Planning Policy No. 53 Ku-ring-gai Planning Scheme Ordinance CASES CITED: The Dubler Group Pty Ltd v Minister for Infrastructure Planning and Natural Resources & Anor [2004] NSWCA 424 DATES OF HEARING: 12/05/2005 and 13/05/2005 EX TEMPORE JUDGMENT DATE : 05/13/2005 APPLICANT Mr B. Hones, solicitor of Hones Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr A. Hudson, solicitor of Wilshire Webb JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Nott C 13 May 2005 11567 and 11568 of 2004 Julie King v Ku-ring-gai Council JUDGMENT 1. These appeals are against the council's refusal of development applications for a dual occupancy and for a subdivision at No. 2 Normurra Avenue, North Turramurra. 2. The proposal has been amended on several occasions. Originally, an application was made to the council to subdivide the subject land, on which there is a single-dwelling house. This subdivision would have taken place after another development application was approved for a dual occupancy. The result of those two applications, if approved, would have created two lots with a dwelling on each. There was then another application to the council to erect a further dwelling house, that is a total of three on the subject land, on one of those lots as another dual occupancy. This last-mentioned development application was withdrawn. 3. Initially, I was concerned whether or not the first development application as amended remained substantially the same development application as originally lodged for the first dual occupancy. Although there have been changes to the sizes of the two houses proposed, I am of the opinion that it is still substantially the same development application. Likewise, although there have been some changes in the subdivision application, for example to the line of the driveway, it is still substantially the same development application for subdivision. 4. The appeal that relates to the erection of the dual occupancy that I am considering is 11567 of 2004, and the appeal relating to the subdivision of the dual occupancy once constructed is 11568 of 2004. 5. It is important from the applicant's point of view that I make the findings in par 3 above, because the proposed development is being carried out pursuant to State Environmental Planning Policy No. 53. That policy was amended by amendment No. 10, the effect of which was to prohibit all dual occupancies and other development pursuant to SEPP 53 in the North Turramurra area. However, the Court of Appeal (in The Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources & Anor [2004] NSWCA 424) has held that a development application under SEPP 53 lodged prior to amendment No. 10 is not affected by the prohibition. That is the case in respect of the dual occupancy application under SEPP 53. 6. The subject land is zoned residential 2(c) under the Ku-ring-gai Planning Scheme Ordinance and reference was made by the parties to the council's dual occupancy development control code. Other planning controls are referred to in the statement of basic facts. The hearing commenced at the site, when I inspected the subject land and the adjoining properties of those persons who had objected who would be most affected by the proposed development. 7. I heard evidence from Mrs L Cakebread of 4 Normurra Avenue, and from Ms A Winstock of 271 Bobbin Head Road, whose property adjoins the western side boundary of the subject land and on which there is a dual occupancy where her elderly mother lives. Also adjoining the same western side boundary is the property of Dr F Macdonald at 269 Bobbin Head Road. Opposite the subject site at 3 Normurra Avenue is the home of Mr and Mrs Seddon. I also heard evidence from several other residents who live further from the subject site. 8. The parties agreed to the appointment of a Court-appointed town-planning expert and that expert was Ms K Gordon. She made certain recommendations, and some changes were made to the plans to satisfy her recommendations. What was uncertain was whether she was satisfied as to the impact of overshadowing from the proposal onto several side windows of Mrs Cakebread's house. 9. The matter was adjourned for further hearing in Court yesterday afternoon, and I heard most of the outstanding matters that had to be considered. The appeals were adjourned to today (13 May 2005) in order to enable a further statement of evidence to be obtained from Ms Gordon concerning the overshadowing. In the context of the overshadowing, I also took note of a suggestion by some of the residents that the proposed development could, in effect, be mirror reversed so that there would be a driveway on the eastern side rather than on the western side. 10. The council gave instructions to Mr A Hudson, solicitor, who appeared for the council that if the concerns of Ms Gordon were satisfied, the council would not oppose the granting of consent, and in fact the instructions were that Mr Hudson was to agree to consent orders. 11. I have considered the question of overshadowing in more detail. The main concern, it seems, is that north-facing windows and areas should receive adequate sunlight but also the sunlight received by side windows should not be ignored. There will be some minor additional impact it seems on the side kitchen window of No. 4; but that window will, at another part of the day, receive sunlight, which it does not now receive because of the overshadowing in mid-winter from Golden Cypresses in the central part of the subject land. One of those trees will be permitted to be removed which will allow greater sunlight to the subject property as well as to the adjoining property. There will be a very minor loss of the very small amount of sunlight that would otherwise be obtained in mid-winter for the southernmost lounge room window of No. 4 on the western elevation. I am not persuaded, having regard to the submissions, that the proposed development should be refused in order to enable another application or alternatively an amendment to the present application to be lodged, as other issues may also then arise. 12. In relation to Mrs Cakebread's property, a series of conditions relating to privacy have been devised by the parties in consultation with the Court-appointed expert and examined by myself and I propose to impose those conditions as well as the other conditions that have been agreed by the parties. 13. Originally, the applicant proposed that all the centrally located Golden Cypresses should be removed. However, because it will be some time before replacement trees grow to a sufficient height, it is important that at least one of those trees should be retained. It is appropriate in my view that the westernmost Golden Cypress be retained. A view to this retained tree would be available from different vantage points on Mrs Cakebread's property and from the properties of Ms Winstock and Dr Macdonald. 14. Having considered the evidence, I do not believe that there will be an adverse effect upon the two beautiful looking trees in the rear yard of Ms Winstock's property. In Ku-ring-gai there is always the possibility in many instances of trees being damaged in storms and limbs falling on the roofs of adjoining houses. There was no evidence to suggest in this case that the Dawn redwood tree would be a danger to the subject property, and the location of the other tree retained in Ms Winstock's property would suggest that it is probably unlikely that any limb would cause damage to the proposed house 2. 15. However, in accordance with normal practice both the owners of the proposed dual occupancies, as well as adjoining owners, should maintain appropriate insurance to compensate or reimburse for any damage caused by trees. 16. Although I am aware that there is an elderly lady in the adjoining property at 271 Bobbin Head Road, I do not think it is appropriate to accede to a request from the owner of that property that the hours of commencement for construction work at the subject site should be varied to 9 am. The ordinary hours for construction work will be imposed in this case. Nor should there be any change to the proposed hours on Saturday. By decreasing the hours of construction, there are problems that may be caused to tradesmen who would ordinarily start earlier, and the length of time over which the construction would take place would probably be extended. 17. In my opinion the traffic situation in Normurra Avenue is not a reason for refusal of the application but it is a reason to require the development to be designed so that cars that have driven into the garage of each proposed house will be able to reverse out in one movement from the garage and then drive out in one movement from the site in a forward direction. Having regard to the amended plans, as further to be amended by conditions of consent, this will be achieved. 18. Some residents objected on the basis that a minimum of 60% soft landscaped area was not provided in accordance with the dual occupancy code. It seems to me that this requirement of the code is in conflict to some extent with SEPP 53, which would allow dwellings having a floor space ratio of 0.5:1 plus the area of any garage. The proposed development has an FSR of only 0.375:1. Moreover, the floor space is not distributed all at ground level but includes floor space in a second storey in each proposed dwelling, so that there would be less built upon area of the site. SEPP 53 overrides conflicting provisions of a local environmental plan and of course of any accompanying development control plan or code. 19. Under the Ku-ring-gai Planning Scheme Ordinance moreover, assuming it applied to the proposed development, a single dwelling house is required not to have a built-upon area exceeding 60%. This provision of the ordinance is mandatory, whereas the provision of the code is merely a guideline, assuming that it is not contrary to SEPP 53. In the present case, the built-upon area of the whole development is only 48.4%. 20. Some changes will be made to the landscape plan in accordance with conditions of consent, which I propose to grant. 21. I am of the opinion that it is appropriate to endorse the agreement of the parties to grant development consent both for the erection of the dual occupancy and for the subdivision of the land once the dual occupancy has been erected. 22. In general, I agree with and accept the evidence presented by the Court-appointed expert. 23. There was a question as to whether conditions of consent requiring a bond relating to landscaping on the subject land itself should be imposed. As a matter of discretion, I am of the opinion that those conditions are unnecessary as there are adequate powers of enforcement of conditions without imposing a bond. If there were such conditions, the question would arise, what would the council do with the money upon a breach occurring. Without further order, the council does not have power to enter private land to carry out landscaping. The drawing down of the bond of itself would not necessarily ensure rectification of the breaches of the conditions. It would be necessary for the council to seek an order, for example under s 121B(1) of the Environmental Planning and Assessment Act 1979. If there were subsequently a failure to comply with the order, assuming it had not been varied on appeal, the council would have power to enter and carry out the work at that stage and to recover any costs. 24. As far as I am aware, having regard to the kind of landscaping which was to be the subject of the bonds in this case, I am not aware of council actually entering private land to carry out such work. There have been many cases where bonds have been imposed but as the parties well know, many conditions are put forward and accepted without dispute or challenge. So I do not necessarily accept that there is power to impose conditions requiring bonds for landscaping on private land but it is not, as I said, necessary for me to decide that because as a matter of discretion I do not propose to require the bonds in the present case. 25. Accordingly, the orders of the Court are: A. In appeal 11567 of 2004 (1) The appeal is upheld. (2) Development consent is granted to development application 1124/03 for the existing dwelling to be demolished and for the construction of a detached dual occupancy comprising two two-storey brick and tile dwelling-houses on lot 6 DP 23608 known as 2 Normurra Avenue, North Turramurra, subject to the conditions in Annexure A (in appeal 11567 of 2004).# B. In appeal 11568 of 2004, the orders of the Court are by consent: (1) The appeal is upheld. (2) Development consent is granted to development application 1125/03 for the subdivision of lot 6 DP 23608 known as 2 Normurra Avenue, North Turramurra, into two lots, subject to the conditions in Annexure A (in appeal no. 11568 of 2004).# In each appeal the exhibits, other than exhibits A to D, H, J, L, 6, 9 and 10 may be returned. A copy of the original exhibit H will also be retained. __________________ A J Nott, Commissioner of the Court Ljr/rjs ____________ # The conditions are not reproduced in this internet version of the judgment. They may be inspected at the Council. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.